This order shall dispose of Criminal appeals Nos. 299 and 428 of 1971. The appellants in these appeals are Muhammad Munawar and Mst. Inayat Bibi respectively. Both of them were tried together for offences under section 366/376/109, P. P. C. Muhammad Munawar was found guilty under section 366/376, P. P. C. And sentenced to undergo rigorous imprisonment for seven years on each count. The sentences were ordered to run concurrently. Mst. Inayat Bibi was convicted under section 366/109, P. P. C. And sentenced to undergo rigorous imprisonment for two---years.
2. Since the sentence awarded by the learned Magistrate to Muhammad Munawar was seven years' R. I. The appeal lay directly to the High Court under proviso (b) to section 408, Cr. P.C. Mst.
Inayat Bibi had, however, filed a separate appeal before the learned Sessions Judge and by my order dated 23rd of May 1972, I directed that the appeal pending before the learned Sessions Judge be transferred to this Court. This was done and Mst. Inayat Bibi's appeal was registered separately.
3. The story is that on 10th of June 1970, Mst. Surayya Bibi (P, W 1.), the prosecutrix in this case, was coming back after giving meals to her father when she was called by Mst. Inayat Bibi in her house.
Both Mst. Inayatan and Munawar appellants caught hold of her and took her forcibly into the house. Mst. Inayatan went away after bolting the door from outside: Munawar appellant threw the prosecutrix on the ground and after pulling her shalwar raped her. She, resisted as result of which her bangles were broken and she received two injuries one below the left eye and the other on the left elbow. Two witnessnamely, Inayat and Ghulam Hussain came to rescue the prosecutrix. They took her to her house where she narrated the story to her paternal uncle's wife Mst. Ghulam Sakina.
Ghulam Qadir (P. W. 6) the father of the prosecutrix had come back from his fields at Peshlwela and he was told about the occurrence. He, however, stated that he was detained by his brotherhood and could not proceed is the police station.
4. The F. I. R. In this case is based on the statement of Mat. Surayya Bibi made to Nazir Hussain (P. W.
10) S.H.O. Police Station Sadar, Wazirabad. While the S. H. O. Professed to have re--corded the F. I. R.
At Sialkoti Gate where the prosecutrix's father met him, Ghulam Qadir P. W. Stated that the F. I. R.
Was recorded at the police station, after they had met the S. H. O. Near the Sialkoti Gate. The shalwar of the girl was produced before the Sub-Inspector which he took into possession vide memo. Exh. P. C. The Investigating Officer went to the spot and front the house of Mst. Inayatan collected the pieces of broken bangles.
S. The prosecutrix was sent for medical examination. Lady Doctor Surayya Ahmad (P. W.8) found that she was accustomed to sexual intercourse. She found a bruise 1' x --' below the left eye and a contusion 1' x --' on the left elbow. No other mark of violence was found on the body of the girl.
Vaginal swa bs were taken and according to the statement of the Lady Doctor were sent to the Chemical Examiner, but on the file there is no result of the chemical examination of the swabs. The shalwar was sent to the Chemical Examiner arid it was found to have been stained with semen.
6. The story as given by the prosecutrix in the F. I. R. As also before the Court is that she was taken to the house of her mother who had been divorced and lived separately from her father on the eastern side of the village. She did not mention that when she went to lodge report her father accompanied her. The two witnesses who are said to have rescued the prosecutrix from the house of Mst. Isayatan appellant, namely, Inayat and Ghulam Hussain did not support the prosecution story and said that they knew nothing about this matter. They were declared hostile and were cross-examined but nothing useful to theprosecution emerged out from this cross-examination except that they admitted to have Sty signed the recovery memos.
7. The learned counsel for the appellants submitted that the evidence was not sufficient to sustain the conviction. The girl said that after the commission of the offence she had washed herself. This perhaps explains the omission of the prosecution to place the result of the chemical examination of the swa bs on the record. She also said that she had made the report on the same day. She did not state that she was taken to her father's house and had narrated the event to Mst. Sakina and to her father as well.
8. It is not clear from the evidence as to where the shalwar of the prosecutrix was produced. The prosecutrix had said that she, had left the shalwar at her house while coming to the police station.
Ghulam Qadir P. W. Her father, said that Mst. Sakina was sent back to the village from the police station to bring the shalwar. The Sub-Inspector on the other hand said that he took the shalwar into possession at the police station but was not sure whether the prosecutrix was wearing it at that time. If this Shalwar had been brought to police station on the direction of the Sub-Inspector, he could not have forgotten such an important incident. It reached the Chemical Examiner on 15th of June 1970, whereas it was admittedly taken possession of on 11 of June 1970.
9. The recovery of bangles was witnessed by Inayat Ullah (P. W. 2) and Ghulam Husain (P. W. 3).
They did not support it. The Sub-Inspector said that the house was open when he went in and recovered these bangles. This recovery also becomes extremely suspicious.
10. The prosecutrix in her statement claimed that she was thrown on the ground by Munawar appellant as result of which she had received abrasions on her back which she had shown to the doctor. She also said that because of the breaking of the bangles by force her arms were injured.
The medical evidence does not support this assertion.
11. The girl is stated to be of about 19 years of age. She is accustomed to sexual intercourse. She admitted that the house where she was caught, was surrounded by inhabited houses. If the occurrence had taken place as deposed to by the prosecutrix, some of the neighbours must have been attracted to the spot In these circumstances the evidence becomes extremely doubtful Ith allow both these appeals and set aside the convictions and sentences of the appellants. It appears from the Sessions record that Mst. Inayatan appellant is on bail. She may be discharged from her bail bonds. Muhammad Munawar appellant is in jail. He shall be released forthwith unless he is lawfully required to h detained in connection with wine other case.